SCOTUS Slaps Down Obama on Recess Appointments… But There’s a Catch

Jun 26, 2014

RUSH: “In a rebuke to President Barack Obama, the Supreme Court struck down three of his recess appointments to the National Labor Relations Board as unconstitutional.

“The decision Thursday gives the Senate broad power to thwart future recess appointments,” which they always had, by the way, “but did not go as far as some conservatives hoped,” it says here in The Politico, “to undercut the presidentÂ’s ability to fill vacant executive branch posts and judicial slots.”

I don’t know how much farther it could have gone. It was unanimous. It was nine-zip. In a nutshell, the Supreme Court said Obama cannot decide when the Senate is and is not in session. Obama’s not used to being told that he can’t do something. It’s gonna be interesting to see his reaction to this, because this doesn’t happen. I mean, this doesn’t happen to the boy wonder. People don’t tell him what he can and can’t do like this. And this is nine to nothing.

I mean, even his appointees, of which there have been two, Sotomayor and Kagan, even they joined the unanimous majority. So what Obama’s task now is to find a way to bypass the Supreme Court, not just the Senate, and he will no doubt look to do that. Yeah, that was Politico. The National Journal version: “Supreme Court Limits President Obama’s Appointment Powers — ‘The Senate is in session when it says that it is.'” Not when Obama says it is in session.

BREAK TRANSCRIPT

RUSH: Supreme Court decision, slapping down Obama on recess appointments. It’s not all good. Well, there’s some stuff in it that’s problematic. Here is the AP story, just gonna read you some excerpts ’cause they get amazingly close to getting it right.

“The Supreme Court today limited the presidentÂ’s power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Obama. The high courtÂ’s first-ever case involving the ConstitutionÂ’s recess appointments clause ended in a unanimous decision holding that ObamaÂ’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal. Obama invoked the ConstitutionÂ’s provision giving the president the power to make temporary appointments when the Senate is in recess. Problem is, the court said, the Senate was not actually in a formal recess when Obama acted.”

The justices said that the Senate says when it’s in session, not Obama. Okay, fine and dandy. But there’s another case that is close to this that had a 5-4 ruling, and it was a problematic victory. I will explain it here.

“Justice Stephen Breyer said in his majority opinion,” in the 9-0 case “that a congressional break has to last at least 10 days to be considered a recess under the Constitution.” Neither House of Congress can take more than a three-day break without the consent of the other. “The issue of recess appointments receded in importance after the SenateÂ’s Democratic majority changed the rules to make it harder for Republicans to block confirmation of most Obama appointees. But the rulingÂ’s impact may be keenly felt by the White House next year if Republicans capture control of the Senate in the November election.

“Still, the outcome,” the nine-zip unanimous decision “was the least significant loss possible for the administration. The justices, by a 5-4 vote, rejected a sweeping lower court ruling against the administration that would have made it virtually impossible for any future president to make recess appointments.

The way these things get written, sometimes with all the double negatives you don’t know what they’re saying. You have to reread it two and three times. You almost have to diagram the sentence, put it on the chart to follow it. This is one of those times. “The outcome was the least significant loss.” On the surface that sounds like, “Well, not a big defeat, not a big problem. Certainly not the biggest defeat they could have had,” because the justices by a 5-4 vote rejected a lower court ruling against the Regime that would have made it virtually impossible for any future president to make recess appointments.

“The lower court held that the only recess recognized by the Constitution is the once-a-year break between sessions of Congress. It also said that only vacancies that arise in that recess could be filled. So the high court has left open the possibility –” and here is the key in this 5-4 decision “– that a president, with a compliant Congress, could make recess appointments in the future,” whenever he wants. The key is “with a compliant Congress.”

So what happened here, Justice Scalia concurred, but his opinion in the concurrence reads more like a dissent, other than the fact he agrees with the result. Scalia’s concurrence — if you read these things, if you read Supreme Court decisions, read Scalia’s here, because it is, as it often is, the model of clarity. Stephen Breyer’s opinion, which was joined by Anthony Kennedy, is basically a bunch of mush. And this is what the AP was referring to. This ruling, 5-4 ruling, problematic, says that the president can effectively amend the Constitution by violating it a lot of times, if Congress doesn’t object vigorously enough, which is the situation we have now.

This is problematic. This is a problem, ladies and gentlemen. Again, the AP version. I want to make sure that I’m clearly understood. This stuff gets so wrapped up in legalese and you have journalists trying to translate it into layman’s terms, and they never get it right, and it is not that hard to understand. We take the complex here and make it understandable. The AP says “the high court has left open the possibility that a president, with a compliant Congress, could make recess appointments in the future,” and then in parentheses, whenever he wants. Compliant Congress being the key.

So the opinion written by Breyer that Anthony Kennedy agreed with basically said that the president can flood the zone with recess appointments in violation of the Constitution, and if the Senate doesn’t object strenuously enough, then that alone can constitute amending the Constitution. So the Supreme Court left it open that if Obama wanted to recess appoint a bunch of people here, a bunch of people there, and if the Senate did not object strenuously, vigorously enough, then the Senate, by virtue of not fighting it, would then tantamount allow the Constitution to be amended.

Now, the reason that that’s problematic is ’cause that’s exactly what’s happening. Obama is flooding the zone with all kinds of things that are outside the Constitution: waivers, exemptions, executive orders, executive actions. And the Supreme Court said here, in the case of recess appointments, that if nobody objects strongly enough then everything the president does, by automatic fiat, will become constitutional. It is incredible to me that the Supreme Court, one of the three branches, is willing to assign this kind of power to the executive.

So if you have a president who says, “You know, I don’t like the fact the Constitution says I can’t do this,” and starts doing that, whatever it is, and if nobody objects and nobody tries to stop him and if he does it enough, it’s just gonna assume to be the new law of the land, the new version of a constitutional amendment, and it will become permissible. That is what is in the 5-4 decision today on the sweeping lower court ruling which tried to say that the recess appointments can only occur once per year, the break between the Senate and the House, they break between sessions at the end of the year.

The lower court said that’s what the Founders intended. Recess appointments, when they’re really out of town, when they’re really not in session, not when they take a break for 24 hours or 12, but when they’re really in session, that’s when recess appointments. That was thrown out. And in its stead essentially the Supreme Court said, “Hey, look, if a president wants to just appoint here and appoint there and if the Senate doesn’t object –” I don’t know what “vigorously enough” means. If they don’t object vigorously, meaning if they don’t sue, if they don’t stand up and stop it.

I don’t know what it means in legal terms. But the upshot of this is if you have an activist president who doesn’t like the Constitution and does things outside it and isn’t stopped, then after enough time goes by, the Supreme Court says, “Well, that’s effectively an amendment to the Constitution so we can just change it and whatever the president’s doing is now constitutional since nobody has a problem with it. This is the problem with not pushing back, is exactly what this is.

When there’s no push-back, political push-back — forget legal for a second — you have here a Republican Party clearly paralyzed by racial fear, and probably paralyzed by fear of the media as well, afraid to push back, stand up and say “no” to Barack Obama. The Supreme Court, within the context of recess appointments, who knows how far-reaching it is into other areas. Right now this is just about recess appointments, I think. It’s early, and there will be a lot of further analysis of this as the day goes on, but right now it looks like in the matter of recess appointments, if Obama just keeps doing it and doing it and doing it, the Republicans don’t say, “You can’t, you can’t, you can’t” then after a while he can, he can, he can, because they didn’t say “you can’t.” In other words, you try to rob the bank enough, and if they stop trying to catch you then pretty soon robbing banks will be legal. This is maybe not the best analogy, but it works.

BREAK TRANSCRIPT

RUSH: Guy in Allentown, Pennsylvania, we own Allentown. Great to have you on the program, sir. Hello.

CALLER: Thanks, Rush. Glad to be on. First-time caller. In fact, I’m just surprised that I got through on my first time calling you, so I went from a foul mood to a happy mood because I got on.

RUSH: Well, congratulations.

CALLER: Thank you. I was in a foul mood over the comments with the Supreme Court ruling. The way I understand it, it’s the judicial branch ruling that because the legislative branch didn’t vigorously oppose the executive branch, the Constitution is changed.

RUSH: No, could be.

CALLER: Could be.

RUSH: Not yet is, but could be. There were two cases. There was a 9-0 unanimous slap-down of specific NLRB recess appointments. There was another case that was brought by a lower court. That’s the 5-4 ruling. That’s where the problematic opinion is, what you just said in the concurring opinions it was said that if the Senate doesn’t vigorously oppose Obama or any president with these appointments, then effectively they are allowing the Constitution to change. Not yet; could be.